Wesley Clark also seems to recognize the brain power, as he was found discussing the potential of faster-than-lightspeed travel at a campaign event in New Hampshire. According to this Wired article, (thanks to the Drudge Report for pointing it out), Harvard-Smithsonian Center for Astrophysics Senior Astrophysicist Gary Melnick commented, "Even if Clark becomes president, I doubt it would be within his powers to repeal the powers of physics."

Howard Dean continues to impress. Today on his blog Dean took a few steps to establish his tech policy. He announced that he had assembled an advisory group of tech gurus, including our friend Larry Lessig. He released a statement of principles for the internet (vague, but promising). And he released as open source some community building software that his staff and supporters have worked on. These actions were duly noted on slashdot. One sharp /. poster pointed out that Howard Dean's web site runs on FreeBSD (an open source operating system), Wesley Clark's site is on Linux, but George W. Bush runs on Windows 2000. Those geeks don't miss much.

I also believe that the war debate fits the general game theory model that under our system, the major parties always have an incentive to appeal to traditional centrist swing voters (voters who may vote Republican or Democratic) rather than appealing to the voters on the right (voters whose choice is Republican, third party, or not voting) or left (voters whose choice is Democratic, third party, or not voting).

First, from the perspective of either party, gaining one centrist voter is worth two on the fringes. This is because that one vote adds one to your party's total while also taking one away from your opponent's. For the Democrats to gain a disgruntled liberal or the Republicans a disgruntled conservative, the party gains one vote, but it is a vote that does not come at the expense of the other party.

From the perspective of the individual voter on the right or left, it is better to fall in line with your more preferred major party as well--no matter how far it moves to the center--unless it appears that there is a third party alternative that is more favorable with a legitimate chance to win. Assuming there is no such alternative--and modern polling should be sufficient to determine which candidates have a legitimate chance as an election nears--the options a voter has are vote for their preferred major party candidate, vote for a non-viable third party candidate, and not vote. If the voter takes option two or three, for the purposes of that election they have essentially chosen to give half of their vote to each viable candidate. This is because they had an opportunity to weigh in in favor of one or the other and chose not to. If the voter truly does not have a preference between the viable candidates, that makes sense. Otherwise, it does not.

The only benefits, then, to casting a vote for a non-viable candidate or not voting when the voter does have a preference between the major party candidates, are 1) the hope that such a vote "sends a message"--beyond that, sends the right message--and the major party who the voter would have supported but didn't reads the voter's mind and changes something the next time around to accomodate that voter. This seems kind of speculative to me, and also inefficient. If changing a party's focus is the ultimate goal, it seems far more effective to actively work to influence both the preferred party's candidate/platform selection process and public opinion, which BOTH parties heed, than to passively cast a "protest" vote and hope something good happens; and 2) the personal satisfaction which comes from withholding one's vote for whatever reason--usually having to do with some sort of moral opposition to the particular candidate. Because our one personal vote is part of the larger scheme and has ramifications beyond the person and because, as noted before, the "protest" vote is really an even vote for the two (or three) major candidates, this would seem to be irrational.

Therefore, the party has the incentive to do what it has to to attract swing voters, while party stalwarts have an incentive to support the party. I would argue that the current Republican dominance is the result of conservatives acting rationally and supporting Republicans, while liberals irrationally abandon the party when they are needed most to tilt at windmills.

This is my belated response to Joe's post lamenting the fact that the Senate Democrats did not do more to derail or at least modify the Iraq war resolution in October 2002. His points (to recap) are: that the war resolution was the most important item that the Senate faced in the 2001-02 session because it involved potential loss of life, the Democrats (by and large) opposed the war in their hearts, but they played politics in going along with the resolution when they (with a 51-49 majority) could potentially have blocked or amended it.

My response is that, as a preliminary matter, the 51-49 majority is illusory. Several of the 51 genuinely supported the war and wanted the open-ended resolution as a means to begin a unilateral, preemptive conflict. These people would have voted down any amendment just as they would have prevented the resolution itself from being voted down. Therefore, the choice for the rest of the Democrats was, as it usually is these days: filibuster, register symbolic opposition, or go along.

At the time, the following considerations existed: 1) The Bush propaganda machine (largely uncountered by the left) had pushed war support to approximately 70-30 (as Barry points out, the 70 includes a significant chunk who only supported the war if the U.N. were involved, but the available polling failed to bring that out); 2) Bush had sworn to the Senators that he intended to get the U.N.'s support for any action and that open-ended resolution was a bargaining chip to strengthen his hand in international negotiations; 3) the midterm election was less than a month away; and 4) Bush and the Republicans were incredibly effective in using said propaganda machine to smear opponents as unpatriotic. (See Ex-Sen. Max Cleland (D-Ga.), who got hit with ads comparing him to Saddam AND Osama for the unforgivable sin of insisting that bureaucrats in the newly formed Department of Homeland Security receive the same benefits as other civil servants.)

Given the three points, many Democrats made the strategic decision to pick option #3 in the hopes of taking the Iraq issue off the table and focusing the election on domestic issues. In hindsight, that was undeniably a crappy strategic decision. To label it a moral failing, though, is a bit unfair. They got taken in by Bush. While us lefties knew what Bush's promises are worth, he nonetheless is a very good liar. After all, he even got one of us to vote for him. (I'm not pointing fingers or naming names, but his anagram is N. Rabble Irony.)The resolution, at that time, was a theoretical exercise. There were no protests or indications that it would lead to anything other than a U.N. resolution.

As to the strategy point, the Dems probably should have figured that Bush was going to slam them no matter what they did, so they might as well have staked out their own position and rallied the antiwar folks. The ideal, in retrospect, would have been to a) do the polling to find out that the swing group are the people who support the resolution but only with U.N. cooperation, and b) pitch the action to those folks. In other words, fight hard for an amendment requiring U.N. cooperation. That's the easy one. Assuming such an amendment is defeated, however, I'm not sure what the strategic course would be.

Asia Times has a very interesting story discussing the Bush administration's moves attempting to get China to revalue the yuan. They are critical of this policy for number of reasons. (FYI, it looks like China is rejecting this pressure in any case...)

First is that we have been running a huge trade deficit with China for some time (which is, of course, the administration's reasoning for this move). During this time China has been piling up US currency, but they have little motivation to buy anything from the US (or anyone else) with it. What can they get from the US that they can't produce cheaper themselves? So in an effort to do something productive with this money they've mostly been buying US government securities (ie financing the US federal budget deficit). If the US reduces this trade deficit at the same time that our budget deficit soars to record levels it will become difficult to find takers for securities to finance our debt. This will result in the US raising interest rates in order to make the securities more attractive, countering Alan Greenspan's intensive efforts to stimulate the US economy with low interest.

They also mention that a majority of the products imported from China are actually produced by American companies (something highlighted in the Oxfam report as well). To some extent this makes the trade deficit illusory (or at least makes it appear much worse than it is). Forcing these companies out of China will make their products more expensive and less attractive on the world market and could end up hurting American business.

Additionally it will have the effect of making products more expensive to Americans (whether the products continue to come from China, or are manufactured elsewhere, including the US), stifling US consumer spending or driving up consumer debt, which is already at dangerous levels.

Finally, the article does not discuss this, but I wonder how much of that manufacturing would return to the US even if China becomes less attractive? Wouldn't Indonesia, the Philippines, and India still be more attractive places to move these manufacturing centers to? I think there would have to be a more intensive effort to devalue the dollar to actually bring manufacturing back home. There is also a CSM article today discussing this general topic.

In all it becomes a very difficult situation to project. However, one thing is clear in all this: our massive budget deficit and national debt clearly constrain our ability to control our own economy with regards to international trade. These are penalties beyond simply mortgaging our future prosperity and indebting future generations. The debt locks our monetary and fiscal policies together, forcing us to make a choice between them. We can keep interest rates low to try and spark growth, but it means maintaining a strong dollar which hurts trade. Or we can devalue the dollar to reduce our trade deficit, but it will cost us higher interest rates to finance our debt. We can't have both.

Sunday, September 28, 2003

It seems we have narrowed (or broadened) the scope to focus on the question: what constitutes government action? It is my position that government action in the constitutional sense reaches a wide range of conduct from doing nothing to active participation in shaping norms and values. It is impossible to separate the government from the choices an individual makes, because the government as an institution shapes the public and deems certain choices acceptable or not. The idea that a man's home is his castle (an idea that plays a central role in this debate) is dependent on the idea of property rights, which must be enforced by the government to survive. If the government enforces an individual's right to choose in some respects and not others, the government is acting as an institution in favoring some choices over others.

Let me offer an example. In 1948, the Supreme Court in Shelley v. Kraemer addressed questions relating to the validity of racial covenants, which are private agreements that essentially place restrictions on the use or transfer of land. Some property owners in a neighborhood brought suit against a black property owner who had received his property in violation of a restrictive covenant that had been placed on the land by its prior owner which forbeyed the land become the property of any person not of the Caucasian race. The neighbors claimed that "judicial enforcement of private agreements does not amount to state action; or, in any event, the participation of the State is so attenuated in character as not to amount to state action ...."

The Supreme Court rejected the neighbor's argument that they should be free to contract, because it recognized that enforcement of contracts requires the coercive power of the government. (The same principle exists in contract law--the government will not enforce a contract that involves illegal conduct.) There is one excerpt in particular that merits consideration here:

The problem of defining the scope of the restrictions which the Federal Constitution imposes upon exertions of power by the States has given rise to many of the most persistent and fundamental issues which this Court has been called upon to consider. That problem was foremost in the minds of the framers of the Constitution, and since that early day, has arisen in a multitude of forms. The task of determining whether the action of a State offends constitutional provisions is one which may not be undertaken lightly. Where, however, it is clear that the action of the State violates the terms of the fundamental charter, it is the obligation of this Court so to declare.

Now, returning to the context specific issues related to telephone solicitation, please do not misunderstand the position I stake out. I do not contend that the government cannot enforce an individual's right to refuse calls from a particular individual or class of individuals. I merely suggest that the government action (or nonaction, for that matter) has a pervasive influence on norms and values, and it does not satisfy me that governmental conduct is not subject to review merely because it affectuates individual choice. How it chooses to structure the regulation can have enormous influence on the choices that are available.

In this instance, the national do-not-call registry, in conjunction with the existing TCPA restrictions, permit an individual to refuse commercial telephone solicitations either on a company-by-company basis or by adding his or her telephone number to the registry. An individual does not have the choice, under either method, of restricting calls from a tax exempt nonprofit organization or calls that do not qualify as a solicitation. By enforcing the choice of individuals in some respects but not others, the government favors certain kinds of speech over others. That this is so can be seen if we change the scenario, and suppose that some individuals did not wish to receive calls placed by minorities. Surely you would agree that if the government had an opt-out list and inflicted a penalty on any minority who placed a call to someone on that list, the government's conduct could be called into question.

The government must always remain aware that its conduct or even inaction has potentially enormous impact, even if the conduct involves institutional structure that simply permits individuals to make their own choices. And where, as here, the government selects certain choices to be enforced and others not, and the distinction involves the content of speech, the government must provide some account for its conduct.

Saturday, September 27, 2003

I still believe that the critical statement in the decision is the reference to Rowen: "The court categorically rejected the argument that a vendor has the right to send unwanted material into the home of another and found that the statute did not operate as a government restriction on speech." I believe that fundamentally citizens should have complete discretion as to who can connect a phone call to them. I think our general perceptions of how the phone network operates are colored by the technological limitations of the system to date. If we were to sit down and draw up specifications for an ideal phone system I would have a system that includes a caller-ID on steroids that would identify the number, name, originating location, and business/organization accurately for every caller, with no opt-out. It would include the ability for the consumer to block calls from individual numbers, by business/organization, by geography, and to arbitrarily block groups of numbers based on those or other factors. It would include optional white-listing and a multi-tiered voice-mail system, such that white-listed calls go directly through, calls from black-listed or unlisted calls go directly to separate voice mail buckets from which the user can opt (based on caller-ID info) to listen to them or not and to add them to the white-list if desired. Essentially I believe that no citizen is required to have a phone, and as such if they do have a phone should hold no obligation to receive any calls they don't care to receive.

All of the things mentioned in my list were not technologically feasible at the time our present network was established and so we have a system that contains little to no safeguards or tools to allow users to exercise much control over their incoming calls. This has established a sort of mind-set where people generally regard the phone network as a system where callers deserve this status of being able to connect calls with impunity. This certainly will not be the case as time progresses. Technologically all of the things I mentioned above can be accomplished today. However, given the morass of interconnected legacy systems and sluggish operating companies that are our phone network those things will only become commonplace after a substantial expenditure of time and money.

The government has stepped in here to offer some stopgap measure to give back some element of control to users of the phone networks. They certainly have nowhere near the funding or capability to offer all of the things I mentioned. In fact, even the extremely limited measure they've announced through the DNC list presents substantial overhead and management costs for them. I don't believe it is feasible for them to offer a highly specific system giving a high degree of control to users as to which types of calls are to be blocked. Essentially, based on their capabilities they have decided to offer a single standard leaving to users the simple choice of opt in or don't. Now, given that they can only (by their apparent judgment) offer a single standard, they are obligated to try and make that standard match the general sentiments of their citizenry. I believe they've done a pretty strong job of that, and if put to a poll an overwhelming percentage of citizens would support the lines they've drawn. So I see this as the government simply trying to step in and assist citizens in actions which they have every right to implement on their own, as was the case with Rowen, but for which the current state of technology makes it very challenging for citizens to do. I believe the discrimination between different speech falls most accurately on the head of the citizens rather than the government.

The essential statement, again, in my mind is that citizens are under no obligation whatsoever to accept any calls they choose not to. I think this reality frees the government from a good deal of responsibility in terms of how they offer to assist citizens in this effort. It is a matter of evaluating where the agency for the decision lies. As long as the government is very clear on how their system works, and it works pretty much automagically (ie the rules are set and never changed, and the rules leave little room for interpretation), I see them in an assisting role, and the bulk of the agency for the decision lying on those people who opt in. If it is the case that the system leaves a great deal of discretion to the government in terms of categorizing different types of speech, then this would hand a substantial amount of agency back to the government, enough, I think, to hold the government responsible for curtailing speech.

I agree wholeheartedly that the issue of evaluating the relative protections of commercial and noncommercial speech was given short shrift in the decision (as was indicated by my second issue), but I really don't think this case should get that far. The implication of the ruling with regards to the government being the responsible agent due to the fact that they do not handle speech uniformly in this case is that if they put a total ban on telemarketing it would be in the clear. I just don't see that. What we're trying to determine here is whether or not the government is taking the role of assisting citizens in an action which the citizens have a right to take (as in Rowen) or whether the government is exercising its own judgment regarding restricting speech. It strikes me as perverse that the court would decide that implementing the system in a manner less representative of the will of the citizens would in fact be considered more of an assisting role and less a case of the government exercising judgment. I think it should be the opposite. By making the system as representative as possible of the will of the citizens being assisted, they place themselves most clearly in an assisting position and most clearly are not exercising independent judgment.

The 10th Circuit has denied the telemarketer's request for a stay of the FCC's order establishing the national do-not-call registry in conjunction with the FTC. The 10th Circuit's ruling does not directly affect the district court's order because it is a different case (but involving the same plaintiffs), but it does hint to the FTC that they could probably obtain immediate relief from the district court's order (meaning the list would go into effect on time) assuming that the arguments are largely the same (and I suspect, because the same plaintiffs are involved in both cases, that would hold true). As to the Tenth Circuit's opinion, nine times out of ten, a failure to show a substantial likelihood of success in a motion for a stay means you're doomed when the full appeal gets decided. This means unless the Supreme Court grants certiori, the registry should be in the clear. Of course, another circuit could definitely muddy the waters by going the opposite way and the Supreme Court would feel compelled to review the issue.

As a point of clarification, I stated earlier that the FCC dropped the ball when it refused to create the do-not-call registry back in 1992. But it appears the current effort to create the registry was really a joint effort between the FTC and the FCC, which makes the Oklahoma decision especially flawed (the court did not discuss the FCC's change of position at all but used language from the FCC's 1992 decision). No matter--the Oklahoma decision will be dead once GWB signs the law that flew through Cognress.

Unfortunately, the 10th Circuit, in its per curiam opinion (meaining a unanimous opinion without a designated author), did not give any hints as to its reasoning. Interestingly, though, it did consider that millions of Americans have registered on the list as demonstrating that there was a "strong expectation interest" in allowing the DNC list to go forward.

Response to Joe's Points

I disagree that this case should be evaluated the same as Rowen (a copy of which may be found at Cornell's Legal Information Institute), but in the end we arrive at the same place. The DNC list does distinguish between commercial and noncommercial speech, and by doing so the government favors noncommercial speech by restricting commercial speech. This necessarily intertwines the government with the speech, as the district court correctly held (p. 18: "The mechanism purportedly created by the FTC to effectuate consumer choice instead influences consumer choice, thereby entangling the govenrment in deciding what speech consumers should hear).

I don't think what decides the issue is whether a lot of discretion is left in the hands of the government to determine what kind of speech survives and what does not. I agree that it would be more problematic if the government were given discretion, but the lack of discretion does not remove the constitutional concerns by itself. If the government passed a prohibition on receiving calls regarding abortion at home, it would not be difficult to decide which telephone calls fit within the restriction and which fell outside it, but there would be grave constitutional concerns all the same. But unlike this hypothetical, the courts have drawn a distinction between commercial and noncommercial speech by giving commercial speech less protection. The real inquiry, it seems to me, is just a question of how much or how little protection commercial speech is entitled to.

I think the court went wrong when it held that "any attempt to distinguish between commercial and noncommercial speech solely because of commercial speech's lesser protected status under the Constitution attaches more importance to the distinction ... than cases warrant and seriously underestimates the value of commercial speech." (p. 25.) The district court claimed this was the position the Supreme Court took in Cincinnati v. Discovery Network, but I disagree. In that case, the Court rejected the city's contention that its regulation accomplished its stated purpose because commercial use of newsracks in parks "had only a minimal impact on the overall number of newsracks on the city's sidewalks." (507 U.S. 410, 419 (1993).) The city's argument was premised on the idea that commercial speech had such low value that it had a very small burden to show that its regulation served some public good. But at the same time the Court refused to impose a tougher standard on the city just because its reason for regulating commercial speech was not "based on the content of the speech or the particular adverse effects stemming from that content." (507 U.S. at 417 n.11).

The district court's opinion seems to be doing just that--imposing a greater burden on the government to show why commercial telephone solicitation as commercial speech is somehow more harmful than noncommercial telephone solicitation. It seems entirely plausible that the privacy interest involved here justifies restricting commercial speech but the same privacy interest does not justify the same regulation on noncommercial speech--even though they both impose the same level of intrusion or harm.

To summarize, I think that the DNC list does involve government regulation of speech because it favors noncommercial speech over commercial speech. The government is therefore required to come forward with some substantial interest that is served by the regulation and demonstrate a reasonable fit between the regulation and its goal. In my opinion, the government has met this burden--a 40-60% reduction in unwanted calls seems to me to be a substantial fit with the government's stated goals (compared to 3% in Cincinnati).

On Telemarketing and the Environment

Honestly, I posted the comment for comic relief, not because I thought it had any real merit. If it had merit, the marketing association would undoubtedly have raised the point in its legal challenges, but it smartly chose not to. I have to give some credit to its authors for creativity, but that's all I will give them.

My response to the environmental harms claim is largely based on /. hearsay. There are a goodly number of /.'ers with experience in the telemarketting business who have posted with regards to the flurry of court cases and legislation. They claim that the real avenue for profit in that business is not facilitating purchases with consumers who would otherwise go to the store for these products, but getting on the line with people who have problems saying no to a hard sell. In other words, without the telemarketting these sales would not occur at all. Which would mean there is no need for the bricks and mortar stores and therefore no environmental damage. The existence of the internet would further blast this claim out of the water. If people really want to buy something without having to drive to the store, they're much better off buying it over the internet than sitting by the phone and waiting for a telemarketter to call.

Friday, September 26, 2003

Sorry for all these posts, but I think it would be helpful (for me, if noone else) to have links to relevant documents on this topic. Here is the brief filed by the FTC in response to a request by the plaintiffs for an expedited stay of the order by the FCC related to the do-not-call registry. I don't know if the 10th Circuit had an opportunity to rule before the district court's order.

Joe, I plan to take some time and respond to your comments, but in the meantime, I wanted to add a concern to the debate. This comment was filed with the FTC prior to its implementation of the rule creating the national do-not-call registry, on behalf of national direct marketers and publishers (although the comment does not specifically identify the group). I draw this to your attention because they argue that the registry violates the National Environmental Protection Act of 1969, which requires (among other things) that regulatory actions having potentially serious environmental consequences must produce an Environmental Impact Statement and evaluate the harms against its purported benefits. At first I though the comment would argue that reducing telephone solicitation would lead to an increase in junk mail, but no. They argue that "consumers have come to increasingly rely upon direct marketing for the purchase of goods and services. This increased reliance has dramatically reduced the need for physical storefronts, which themselves require more energy and impose greater environmental burdens than do telephone calls followed by the "carpooled" delivery of purchased products."

This reminds me of a bumber sticker I saw in Vermont that read: "If you don't like logging, then go ahead and wipe your ass with plastic toilet paper!"

I think the weakness of the Colorado ruling lies in its determination on whether the DNC list is a "government restriction" on speech (pages 16-18). It compares this case with Rowan v US Post Office where the Supreme Court ruled that since the government was simply facilitating an action that the addressee could take on their own (refusing to accept the mailing) the government was not itself restricting the speech contained in the mailing. Quoting the Colorado ruling's interpretation of that case: "The court categorically rejected the argument that a vendor has the right to send unwanted material into the home of another and found that the statute did not operate as a government restriction on speech."

The ruling finds that this is not the case with the DNC list. They argue that with the Rowan case the citizen has complete autonomy to select which mailings are blocked, whereas with the DNC list the government is making the distinction as to what is blocked (most commercial speech) and what is not (charitable speech, political speech, and specific types of commercial speech). By implication, if the DNC list had been all-inclusive then it would have passed this measure and not been considered a government restriction on speech.

This strikes me as an odd interpretation. I might understand if there was a substantial difficulty in determining the boundary between commercial and non-commercial speech. This would leave considerable regulatory power in the hands of the government to decide who could and could not make calls, and would create the sort of entanglement that the ruling worries about. However, that does not seem to be the case here. The distinctions appear to be clearly drawn out and interpretation should be trivial. The court recognized that in a number of cases distinctions have been drawn between commercial and non-commercial speech (p.14). These rulings should lay out solid ground for interpreting which is which. Certainly nothing discussed in the ruling touches on this issue or demonstrates reason to be concerned. They apparently are satisfied to note that the regulation does not regard all types of speech in the exact same manner, and that this by itself denotes government interference with speech.

I do not believe that this element of the decision will hold up. The Supreme Court's statement on Rowan appears to be directly applicable here. Vendors do not have the right to force their speech into someone's home. If it is fine for the government to help a citizen restrict vendors from commercial speech on a case by case basis, it seems it should also be fine for the government to assist citizens in the same manner while grouping multiple vendors under the protection, as long as the decision as to which vendors are included is clearly laid out for the citizen and interpretation of such is trivial. If the court had considered this issue and found that the interpretation of which calls to block left room for government discrimination against free speech that would be one thing. But the fact that they did not even consider the matter leads me to believe this is a definite angle for attacking the decision. If this element of determining that the government is itself regulating speech fails, then the rest of the First Amendment arguments collapse.

I believe there is a second line of attack in regards to the court's ruling that the FTC does not adequately advance its purpose of safeguarding privacy because it still allows charitable solicitations (and other protected calls) to go through (p. 21-24). The ruling references Cincinnati v Discovery Network, Inc in stating that it even if your cause for restricting speech is good enough to pass muster, if you are only making a partial improvement, then that is not good enough reason to restrict speech, particularly if any content discrimination is involved in that partial improvement. Here the ruling recognizes that the DNC list is far more effective than the actions taken with Cincinnati, but feels that because they use content discrimination in doing so, it should not be allowed.

While I'm not versed on the arguments made in Cincinnati, I believe that the point mentioned in this ruling (p. 14), from Florida Bar v Went For It, Inc ought to apply here: "Commercial speech also receives lesser protection, because to require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the First Amendment's guarantee with respect to the latter kind of speech." If we are considering the DNC list to be a restriction of speech (which must be the case in order for this element of the decision to be relevant), then this is clearly a situation whereby making no discrimination between commercial and noncommercial speech will lead to restrictions in noncommercial speech, as this will be required for the DNC list to move forward. I think a strong argument can be made that content discrimination in this situation does more to further the First Amendment protection of noncommercial speech than to hinder the First Amendment protection of commercial speech. While it may not be kosher to bring politics into the court, it should be recognized that there is a powerful political will behind the DNC list (as demonstrated by the quick action of our legislators) and that most likely a ruling disallowing content discrimination in the list will not result in the end of the DNC list, but in a reformulated list that covers commercial and noncommercial content alike. Given this scenario it seems that the First Amendment will be best satisfied by a DNC list that allows noncommercial calls.

ps. Just had a wisdom tooth pulled and am home from work today leaving me even more disposed to sitting around reading useless crap than usual. :)

I was thinking some on our conversation in the car regarding how the Senate Democrats handled the Iraq war resolution. A good point was made that if even two Democrats defected (and by this I mean for reasons of conscience rather than politics) and voted for the resolution it would have passed, making the votes against (by the reasoning of the Democratic leadership) a meaningless sacrifice. However, aside from a filibuster (which would have required significantly more defectors), there were still strong steps the Democrats could have taken. As the majority party in the Senate, they could have amended the resolution to require UN involvement or to require certain bars to be met prior to a war being started, or to require postwar plans to be put in front of Congress before the war began, etc. They had the complete power to shape the resolution as they desired. But instead they rolled over and signed a blank check allowing the President to do anything he damned well pleased. The failure is not simply that they allowed the resolution to pass, but that they didn't leverage their power to get any concessions made that would make the resolution more palatable to themselves and their constituents.

Thursday, September 25, 2003

First, the good--the Senate approved the ratification of the FTC's authority to create the do-not-call registry by a vote of 95-0 (see this New York Times article). It's amazing how quickly Congress can act when it wants to.

But another district judge found it unlawful, this time for First Amendment violations. The opinion from the District Court of Colorado may be found here. The court held that it was impermissible to distinguish between commercial and noncommercial speech for eliminating telephone calls to the home. The judge argued that the fundamental problem with the registry is that "the mechanism purportedly created by the FTC to effectuate consumer choice instead influences consumer choice, thereby entangling the government in deciding which speech consumers should here. This entanglement creates a regulatory burden on commercial speech." (p. 18)

The court recognized that there was a substantial public interest in limiting calls into one's castle, but found that the registry would only eliminate 40-60% of all solicitation calls, and is therefore under-inclusive. The under-inclusiveness, according to the court, is content restriction. The court rejected the FTC's justification for drawing a line between commercial and noncommercial calls, writing that "there is no doubt that unwanted calls seeking charitable contributions are as invasive to the privacy of someone sitting down to dinner at home as unwanted calls from commercial telemarketers." (p.24). While recognizing that noncommercial speech is generally afforded more protection under the First Amendment, the court held that "any attempt to distinguish between cmomercial and noncommercial speech solely because of commercial speech's lesser protected status under the Constitution attaches more importance to the distinction between commercial and noncommercial speech than cases warrant and seriously underestimates the value of commercial speech." (p. 25)

This opinion merely strengthens my belief that we should not be affording individual rights to corporations. I recognize that there will be some fuzzy lines that need to be drawn on occasion, but this is rediculous. I imagine that the Colorado judge can expect to receive a flurry of noncommercial solicitations to reconsider this ruling, as happened with the judge in Oklahoma according to this story in the Washington Post.

As a matter of public record, Judge Nottingham's number is (303) 844-5018.

Yesterday's Wall Street Journal had this editorial "by" California gubernatorial candidate Arnold Schwarzenegger. I don't know how much of this actually came from the man himself, but I doubt it was much. His resistance to contemporaneous discussion casts suspicion on what are truly his core values. Some have argued in the past that it really shouldn't matter, because the people writing the speeches are the ones getting the administrative posts anyway, but there will be tough decisions that cannot be solved by less-than-witty one liners.

Thanks, Joe, for highlighting this point. The bulk of mainstream media seems to have missed it.

I have mentioned e-ink and e-paper before, and I remain firmly convinced this will advance computer use leaps and bounds. Imagine combining the portability of nanotech with wireless with e-paper. The future will surely be fun, if we don't kill ourselves in the meantime.

I can hardly find adequate words to express my disgust at the fact that the major debate for the California recall election (ie. the only one they could get Arnold to show up for) has released the questions ahead of time. As per my comments previously on this site and in discussion with Barry over the weekend, it is a great failing of the way we conduct our campaigns that major candidates can make it through to election day without speaking more than a few unprepared and unscripted lines. The whole entire point of debates is to get candidates off their scripts and speaking candidly. If you're not going to do that, don't bother holding the debate at all (and that goes for you too, Jim Lehrer).

The New York Times had this article yesterday about California's new anti-spam law (the text of the bill, which is SB 186, may be found here). It affords a private right of action and $1000 recovery per unsolicited commercial email, as well as government enforcement. This is going to make a huge difference in email because it is particularly difficult for a spammer to know who is or is not a California resident by an email address. Score one for the good guys.

As the opinion describes, the FCC had an opportunity (and in the court's view, has the authority--not the FTC) to create a national do not call registry but decided not to because it claimed it was not economical and efficient for those who "by and large would like to maintain their ability to choose among those telemarketers from whom they do and do not want to hear." In short, the FCC failed to do its job, and the court found that the FTC could not do the job instead.

This is just another issue that raises suspicion that the FCC has not remained sufficiently independent from corporate interests to avoid agency capture. I am still looking for a good rebuttal on this point, but two sites are worth visiting that advocate this position--Common Cause's page on the FCC and MediaReform.Network (the group putting on a conference in Madison where all the cool people will be).

Tuesday, September 23, 2003

As for nutritional information, each fry has ONLY 75 calories and 4 grams of fat. McDonald's claims in its nutritional information chart that its small serving of fries have a total of 210 calories and 10 grams of fat, while a cheeseburger has 330 calories and 14 grams of fat.

Friday, September 19, 2003

I was poking around Wesley Clark's webpage (hey, it's been a slow afternoon), and while there isn't much material regarding his policy positions yet there are some old articles he has written. One of them, written a year ago, is an in-depth discussion of his experiences in Kosovo and how they relate to the war on terror. It is a brilliantly written column, and piques my interest in Clark. It certainly puts to shame his rather, ahem, uninspiring announcement speech.

Well, we're all over CSM's stories today. As you know I've been taken with quite a fascination of Iran for some time. They've been in the news quite a bit recently as the Bush administration has successfully pushed through an IAEA resolution calling for Iran to give a full disclosure of their nuclear program by Oct. 31. Or else. This is a huge turning point for Iran. CSM ran a very nice story summarizing the situation today. My gut feeling is that they'll tell the IAEA to take a hike. I think they have the feeling, now more than ever, that they need to have a nuclear deterrent. They know that if George W. Bush gets reelected as President, there is a very real chance that the US will invade their country. Further, with Iraq gone, I think they see an opportunity to become the key strategic power in the Middle-East, and to play a leadership role amongst the Muslim nations.

They also know that there will never be a better time to move on their weapons program than the present. The US is completely tied down with Iraq. The budget and the military have been pushed to the limit. And to make things even more opportune, North Korea is playing the same game. If both nations flout the nuclear non-proliferation treaty certainly the US cannot afford to go to war with them both. Basically, if Iran can have a functional weapon ready within the next year or two, they will never have a better opportunity than they do now.

I do not believe that international censure or sanctions will move them too much either. They have spent the better part of the last 25 years being despised by the West, and their recent efforts to make friends have largely been rebuffed due to this terrorism flap. The biggest remaining threat is Israel. There is no love lost between the two nations, and frankly I think Iran enjoys antagonizing Israel with their weapons program. They will need to be careful to ensure that their nuclear program is not so easily destroyed as Iraq's twenty years ago.

The underlying problem here is that any nations not closely aligned with the US are starting to feel very insecure. This is a stated goal of the administration's aggressive national security plan. To let the Evildoers know that nobody is safe. But the Evildoers know better than that. Anyone can be safe if they have enough nuclear weapons. The Evildoers also know that the US has a limited capacity to intervene in their weapons programs. As such nuclear proliferation becomes an extremely attractive option to any nation concerned about being labeled an Evildoer. Perhaps the administration did not really think through what it would mean for the world to become a more aggressive and belligerent place.

The Christian Science Monitor frequently has wonderful guest editorials, but I've never been very sold on their "The Monitor's View" editorials. They're typically too short by half, and avoid taking any stand on the issue, rather being content to simply point out that the issue exists. After reading this rather atypical Monitor editorial, I can see why. They present a rather simplistic view on how the war with Iraq is not helping Al Qaeda, and that it may, in fact, curtail terror as the increase of democracy sweeps through the middle east (hope truly does spring eternal). This seems to ignore a few basic facts.

Fact: no connection between Iraq and Al Qaeda was ever demonstrated. The best the Bush administration could come up with was that a known Al Qaeda agent was hiding out in Baghdad. Of course, we also know that at various times Al Qaeda agents hung out in Florida, Boston, and up-state New York, and this was never assumed to mean that the local governments there were complicit (although you never know with Jeb Bush).

Fact: the US has limited military and financial capacities. Resources spent destroying and then rebuilding Iraq are not being spent to pursue Al Qaeda and their allies. And this is no small potatoes. We're looking at hundreds of thousands of troops tied down for years, and hundreds of billions of dollars spent.

Fact: the US has limited diplomatic capital. The goodwill that was squandered in pursuit of the war with Iraq will without a doubt hinder the US's international operations (and it's ability to pursue Al Qaeda) for years to come.

Fact: Al Qaeda is not an island. They are the focal point of a broad array of Muslim and arab militant organizations spanning from East Africa through the South-west Pacific. Many of these groups have little in common. One unifying point they can all agree on: they are enraged by Western colonialism, empirialism, interference with, and domination of Muslim states. All of these organizations need funding. All of these organizations need recruits. All of these organizations need local sympathy to shelter and abet their operations. And after the outrage generated by the attack on Iraq, all of these organizations will have an easier time procuring all of those things.

In light of all that, one would have to be delusional to suggest that the war on Iraq did not in any part interfere with our pursuit of the war on terror.

CSM has an editorial today pointing out that Americans need to debate (deliberate) on how the U.S. might best achieve peace petween Israel and Palestine. I have been thinking about this for some time now. It amazes me that there is such blind support for Israel in this country. Howard Dean was recently lambasted when calling for an "evenhanded" approach by the U.S. towards the Israeli-Palestinian conflict. Why is this so controversial? If the United States government really wanted to foster peace between Israel and Palestine, I believe it could rather easily do so by putting significant pressure on BOTH peoples. This is simply a question of how committed the United States is to achieving peace there, and it appears it does not have the priority that has been given Iraq.

The United States could easily put down terrorist organizations in Palestine. It could easily arrange for the removal of Yasser Arafat. It could easily put substantial pressure on Israel to remove illegal settlements and adhere to UN Security Council resolutions calling for an end to the occupation of Palestine by Israeli forces. Israel receives something like one third of all U.S. foreign aid, a staggering amount in the billions of dollars. It is clear that we have the financial and political leverage to persuade the Israeli government to take such steps. Finally, the United States could easily lead or create a peacekeeping force in Palestine, something that would be absolutely necessary until the Palestinians can rebuild infrastructure and hold legitimate elections.

If the United States can topple two governments within a year, it most certainly can create stability in Palestine. Critics will claim that peace can not be imposed on these two peoples. Yet history has shown us that they are incapable of establishing peace on their own, and they are unlikely to do so until there is a buffering force between them.

Thursday, September 18, 2003

BBC reports here that researchers demonstrated that when monkeys observed their colleagues getting greater rewards for the same tasks, they refused to perform future tasks or sometimes refused future rewards in protest. The abstract of the study can be found here, in the most recent edition of Nature.

This study may require a reordering of our species. It appears that monkeys have evolved characteristics more advanced than Bush.

Today, it seems, George Bush has joined Cheney and Condi Rice in admitting that Saddam had nothing to do with 9/11.However, he says that we did come close to "the geographic base of the terrorists who've had us under assault now for many years." Nice to know that we at least hit the right hemisphere. Well done indeed.

Wednesday, September 17, 2003

It's my 3rd post today, but I'm stoked about our upcoming Boys' Weekend and can't hold back =). (BTW, what are we cooking?)

I thought I'd offer a response to the article Barry pointed out on deregulation: The Big Media Boogyman. Thierer and Crews are attempting to show that there is a much more diverse marketplace today than 30 years ago, prior to deregulation. In doing so they state that today there are 500 TV channels, compared 5-6 in 1973. Today there are 13,000 radio stations compared to 7000 in 1970. They neglect to mention that the majority of these 500 TV channels and 13,000 radio stations, not to mention most of the record companies, movie studios, newspapers, and magazines in the country are owned by a mere 8 or 10 companies (and do click on the "Research Behind the Chart" link). Of course there are more options, the technology and the market have expanded tremendously since 1970. But all of those options are now under the control of a small number of people, people who now effectively can dominate the discourse of our deliberative democracy. Local outlets have by and large been eliminated.

They also offer access to information via the internet as an example of the explosion of new options for consumers. This is hardly a credit to the deregulated market. The internet would have arrived regardless of the regulations on TV and radio.

They claim that the regulations do not keep up with the evolving marketplace. Why, they ask, "should media companies be forced to play by a distinct set of random ownership rules that we impose on no other industry"? Perhaps they haven't contemplated the role that open discussion serves in our form of government? Or that the airwaves are a public resource, to be doled out in a manner most benefiting the public? To understand the danger of allowing unfettered private control of the media, one need only observe the lunaticwho leveragedhis media empireto supreme powerin Italy (and believe me, I could come up with another 20 links just like these on request, the guy's a fruitcake). Why should we subject the media to special rules? Because the very existence of government depends on it.

The simplest argument I can make on this case is to simply look at Clear Channel and how they do business. What they do is buy out independent radio stations, clear out all of their staff and run them from regional studios, where they can broadcast the same content to numerous stations in different markets. This is very profitable for them. Even if some fraction of their listeners decide that the new format is crap and tune out, the cost savings is so great that it still generates significant profits. Particularly when they own all, or nearly all of the stations in town, which is not uncommon. End result is that there are fewer voices, few sources of content. When they make political decisions, which they do, regularly, there is now one corporate headquarters making the decision for thousands of stations, rather than each station deciding for themselves. With each station consumed by the mega-media conglomerates the deliberative discourse in our country grows smaller, tighter, less diverse.

I suppose it is worth noting that Thierer and Crews co-authored a book called "What's Yours Is Mine: Open Access and the Rise of Infrastructure Socialism". I don't know if I even need to describe the book, with a title like that. Basically they're arguing that allowing the government to regulate such things as requiring open access to telecommunications infrastructure (phone lines, cable networks) or disclosure of file formats or network protocols equates to socialism and is therefore Eeevil. This is a wee bit over the top and goes against most of the areas of agreement we've found with respect to deregulation, ie that each market should be scrutinized in depth to find which elements of that business should be exposed to the open market (and which parts should not) in order to promote competition that will truly benefit consumers.

Barry, I fear we're doing a pretty dance around the points we're trying to hit. Your criticism that our representatives are human and fallible I will accept. But that this necessarily delivers responsibility from them onto the voters I won't. Voters certainly have a responsibility, but elected representatives have one as well. I believe that our office-holders do have a duty and responsibility to behave in certain ways. I believe that this is a critical element to having a functional republic. When I say, as I have regularly during our discussions, that there needs to be a degree of social and cultural buy-in for a democracy (republic) to work, this is a part of what I'm referring to. Elected office-holders ought to hold some degree of respect for the institutions they serve, and ought to behave in such a manner as to reflect that. If this cultural buy-in doesn't exist, I don't believe that there is a constitution in existence (or in theory for that matter) which will hold such a government together. A constitution is simply a piece of paper. It is no better than the people who carry out its designs.

In a technical, scriptural sense, of course, our Congress-people have no official duty to do anything, as far as I know. If they want to stay at home, drink a beer and watch Jerry Springer while Congress is in session, they have every legal right to do that. However, I think there is some implied contract that when you vote for a politician they will act in the manner that they represent themselves in their campaign, that they will uphold the values they promote in their campaign, and that they will make a good-faith effort to implement the plans they present in their campaign. Because, as a voter, that's all you have. Once you cast that vote you don't have any more power over what that person does.

Additionally I hold full-time elected officials to a higher standard of decision-making than common street folk. This is not because we have "found angels in the forms of kings" to govern us. It is due to the fact that they have the opportunity, as Ryan mentioned, and (based on the above) the duty to inform themselves of the issues in greater depth than most. And because of this they should also be less vulnerable to the behavioral tricks that propaganda plays on those who are less informed. It is not that these people are necessarily superior, but that their position gives them both opportunity and motivation to make sounder, better-informed decisions, and in this manner to stand a level above the tides of sentiment.

With regards to Iraq, the Democratic Congress-people (and I'm mostly referring to the party leadership, as many of the rank-and-file, particularly in the House, voted against the resolution) acted, not in a manner consistent with core values or campaign promises, but based on their observations of polls like this. They saw that liberals were split on the issue while moderates and conservatives supported war. They saw that the public did not trust them nearly as much as they trusted the Republicans on the issues of Iraq and Terrorism.

The core party values are those of multilateralism, benevolence, and cooperation with international rules and bodies. The war went against these things and introduced Bush's concept pre-emptive aggression and the Neo-con Pax-Americana security strategy. The liberal public has never supported these ideas and rejected this war before and after it occurred, and were evenly split on the issue only during periods of intense pro-war propaganda (primarily Oct '02 and Mar-Apr '03).

The Democratic leadership who jumped on board with this resolution rejected their core values in an effort to play the polls for the fall elections. They figured that since liberals were split, they would take the same hit from them either way, so why not go the direction that will be more appealing to moderates and conservatives and that might make them more convincing on the issues of Iraq and terrorism. That was the calculation they made. Our core values versus a possible few percentage points in the mid-term election.

Did they actually believe in what they were doing? No. After voting for a resolution to give President Bush the unlimited authority to wage a pre-emptive war, Dick Gephardt said: "[this is] not an endorsement or acceptance of President Bush's new policy of pre-emption". Said Hillary Clinton after voting for a resolution that made possible a unilateral pre-emptive war of unparalleled arrogance: "My vote is not, however, a vote for any new doctrine of pre-emption, or for uni-lateralism, or for the arrogance of American power or purpose, all of which carry grave dangers for our nation, for the rule of international law and for the peace and security of people throughout the world." Other Democrats made similar statements, directly contradicting the action they had just taken. And that was at the time the resolution was passed. Now that war fever has declined amongst liberals, the Democrats who voted for this resolution are running away from it just as fast as they can run. They don't believe in it now, and they didn't then. They were just playing the polls.

In my view this act of betraying core values on a critical issue for temporary political gain is a betrayal of the implied contract between voter and candidate. That is why I state that my opposition on this issue is of a different quality than that of disagreeing over policy (as I do with Dean on various topics). If I cannot trust a candidate to abide by the things they claim to represent, then it matters not whether those claims are in line with my views. In fact, it is a more offensive position; I prefer the candidate that disagrees with me on policy to the one who seeks to deceive (or more accurately doesn't have the backbone to stand by what they believe).

Sen. Jim Jeffords (I), voted against the resolution, as did one Republican senator (I don't recall the name). If they had wanted to, the 50 Democrats in the Senate could have killed the bill without even resorting to a filibuster. They had the power in their hands to prevent a war that they didn't believe in and they did not do it. I find it hard to hold Democratic voters responsible for that.. They were stabbed in the back by their own representatives. I can only hope that they will do the right thing now and dump all these ass-clowns out on the street.

ps. long post... whew.. Notice the lack of banner ads at the top of our page now. Thank our friends at blogger.com. I was going to sign us up for the ad-free version ($15/yr) but their billing system is broken, and when I complained they said they were revamping their system, but would give us the ad-free version as a courtesy. :) Cool.

The US exercised its veto on a UN resolution to condemn Israel's efforts to remove Arafat. The US was the only security council member to vote against the measure. It's almost like we're going out of our way to make it easy for Muslims to hate us...

Tuesday, September 16, 2003

Here are some excerpts from Meet the Press, Sept. 14, in an interview between Tim Russert and Vice President Cheney. Enjoy...

Regarding the award of a major Iraq reconstruction contract to Haliburton:

MR. RUSSERT: Why is there no bidding?VICE PRES. CHENEY: I have no idea. Go ask the Corps of Engineers. One of the things to keep in mind is that Halliburton is a unique kind of company.

Regarding the poll of Iraqis I mentioned on Sep 11:

VICE PRES. CHENEY: One of the questions it asked is: “If you could have any model for the kind of government you’d like to have”—and they were given five choices—”which would it be?” The U.S. wins hands down.[The U.S. was preferred by 37% of respondents, Saudi Arabia by 28%.]If you want to ask them do they want an Islamic government established, by 2:1 margins they say no, including the Shia population.[Accurate here, although the Sunnis are split evenly]If you ask how long they want Americans to stay, over 60 percent of the people polled said they want the U.S. to stay for at least another year.[Over 60% of those with an opinion said they want the U.S. to stay]

Regarding weapons of mass distruction in Iraq:

VICE PRES. CHENEY: I guess the intriguing thing, Tim, on the whole thing, this question of whether or not the Iraqis were trying to acquire uranium in Africa. In the British report, this week, the Committee of the British Parliament, which just spent 90 days investigating all of this, revalidated their British claim that Saddam was, in fact, trying to acquire uranium in Africa. What was in the State of the Union speech and what was in the original British White papers.

I'm not sure I can add much to this eloquent discussion, except to say that you are both right in the ideal world of a republic. The very nature of a republic places responsibility in the hands of both the people and also the representatives of the people. It is therefore incumbent upon the representatives AND the people to engage in deliberation, particularly on such important issues as authorizing use of force against other nations or enhancing executive powers at the possible expense of civil liberties.

I see two major complicating factors to this idealistic description of responsibility in our republic. First, the representatives, and not the people, have far greater access to relevant information in the current political system. This includes not only public information available on the issue at hand, but more importantly sensitive or classified information that would not be available to the general public for some time. It is unreasonable to expect that the American people can make an informed decision on sensitive issues (such as those described above) because they are not likely to have the necessary information. For example, we (the public) had to take the Bush administration's word when they claimed initially that Iraq posed a serious threat to our security. However, our representatives did not have to take the administration's word. They (at least some of them) most certainly had access to intelligence reports and to experts that would be able to help them assess the credibility of the reports. Because of the privileged nature of such information, the greater responsibility now lies with the representatives to make a careful, considered decision.

Second, and already implied, our representatives possess the authority to make policy decisions on the daily level, while the American people do not. The people can at some point hold their representatives accountable, but this is rarely an expedient process. It is therefore up to the representatives in particular to educate themselves and be aware of current issues, as their daily decisions will have profound impacts on the United States and the world.

In the cases of authorization of use of force against Iraq and passage of the USA PATRIOT Act, I believe that our Congress largely failed to live up to their responsibilities as representatives of the people. They had far greater access to information regarding the threat posed by Iraq, and the immediate authority they held required a greater responsibility to educate themselves on these issues, which they apparently did not do.

Monday, September 15, 2003

My earlier post was not meant to quarrel with the value of a republic, but rather to assign chief responsibility for our predicament to the people. Ours is, after all, a government by the people and for the people. But as we have now gone down this road, we might as well see where it leads. And I recruit Thomas Jefferson as my traveling companion.

I wholeheartedly agree that our "system needs to be constructed in such a manner as to be able weather these storms of turbulent sentiment." It is precisely the structural integrity of our Constitution that is its value, not its representatives. Of course, I do not mean to say there is no worth to great leaders, only that it is the system and not these leaders that makes our nation great.

Joe, you claim that "the very reason for [elected representatives'] existence is an effort to buffer public policy from the random tides of public opinion." Who are these representatives but humans as destined to err as the next? (Indeed, the self-selection of politicians may lead them to even greater fallibility). Jefferson put it best: "Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him? Let history answer this question." (First inaugural Address (Mar. 4, 1801)). History has cried out the answer, but it appears to have fallen on deaf ears. But deafness isn't what plagues us most; rather, people have lost the will or capacity to speak. And "all tyranny needs to gain a foothold is for people of good conscience to remain silent." (Jefferson, reference unknown).

Delegation of authority should not distance the government from the people but should afford the people greater access. For "governments are republican only in proportion as they embody the will of their people, and execute it." (Jefferson, Letter to Samuel Kercheval (July 12, 1816)). Representatives can invest greater effort exploring the complexity of government and navigate through the tumult of the masses, but they must not never transcend their delegation. "I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion." (Jefferson, Letter to William Charles Jarvis (Sept. 28, 1820)).

I fear that people conflate the delegation of authority with delegation of responsibility. If Congress has failed in any respect, it has abdicated its duty to educate the public and attended to its own concerns as though somehow separate from the people. But it is the people in the end who must be blamed for their ignorance or at least their inattentiveness. "If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be." (Jefferson, Letter to Colonel Charles Yancey (Jan. 6, 1816)).

"Enlighten the people generally, and tyranny and oppressions of body and mind will vanish like evil spirits at the dawn of day." (Jefferson, Letter to Du Pont de Nemours (Apr. 24, 1816)).

Sunday, September 14, 2003

Barry, I must heartily disagree with your analysis of the responsibilities of our elected representatives. If it was their job to react directly to the opinions of the public, we would hardly have need of them at all. The very reason for their existence is an effort to buffer public policy from the random tides of public opinion. James Madison wrote in The Federalist No. 10: "Hence it is such that democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths." It was in an effort to curb the flighty tendencies of the public that a representative government was chosen.

In the view of the founders, as in my view, it would be irresponsible, given the historical record of previous democracies, to expect the public to be steady, just, and consistently well-informed. As I have said on other occasions, it is foolish to attempt to solve systemic problems with calls for personal responsibility. Telling the people that it is their fault for not seeing through government propaganda created to stir their emotions is no more responsible than trying to solve crime by telling criminals they need to stop breaking the law or solve poverty by telling the impoverished they should get of their ass and get a real job. The system needs to recognize that the emotions of the people are inconstant and easily swayed and that their judgment can thus be impaired. And the system needs to be constructed in such a manner as to be able weather these storms of turbulent sentiment. And so it has. Thus have we a congress. A congress, quoting Madison again, "whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations."

It is precisely the duty of our representatives to look at a larger picture than next week's opinion polls. And as I see it that duty is in relation to the importance of the issue. If the issue is whether or not a resolution is passed to commend the Red Cross for their efforts in Afghanistan, I would not see it as a dereliction of duty, per se if a representative casts their vote for trivial political reasons. But if they do the same on the question of going to war, that would clearly be a dereliction of duty. I do not know what other duty there is for a representative than to exercise their wisdom and love of justice, held above "temporary or partial considerations", with regards to the momentous issues of the day.

In my opinion, Daniel Schorr's piece does not lend any meat to the debate. If anything, such a cursory evaluation of a very thorny subject only adds to confusion on this topic. While I recognize that my posting is subject to the same criticism, there are a few reasons why I believe it is wrongheaded to either fully embrace or flatly denounce the deregulation of complex industries.

First, deregulators fall prey to what is often referred to as the "nirvana fallacy"--comparing the actual world with an unobtainable ideal--when the argument is framed as choosing between government playing an active role or keep its hands to itself. Federal and state governments are so intimately involved at all stages of our economy that deregulation proponents are simply wrong when they claim that the government can now (or could ever) play the role of passive observer. Removing or loosening regulatory oversight does not return the markets to some pre-regulatory world any more than removing a dam would return a river to its natural state--once the government becomes involved, it cannot extricate itself without consequence.

Those favoring regulation are equally guilty of this fallacy when they argue that there are market failures that can only be corrected by government regulation. Economist Harold Demsetz put the problem this way: "Those who adopt the nirvana viewpoint seek to discover discrepancies between the ideal and the real and if discrepancies are found, they deduce the real is inefficient." (Harold Demsetz, "Information and Efficiency: Another Viewpoint," 12 Journal of Law and Economics 1-22 (1969)).

Nobel Laureate Ronald Coase similarly commented, "until we realize we are choosing between social arrangements that are more or less all failures, we are not likely to make much headway." (Ronald H. Coase, "The Regulated Industries: Discussion," 62(4) American Economic Review 777-795 (1964)).

Second, I do not buy into the idea (implicit in many of the arguments favoring regulation) that the government knows better than the marketplace. Legislators or administrative officials are, as a general rule, more clueless than industry players. Of course, industry players are not likely to show self-restraint. Therein lies the crux of the problem as I see it. Those in the best (only?) position to adequately diagnose problems within a particular marketplace are those who have the most to lose by sharing that information.

Third, examples of deregulatory failures don't necessarily lead to the conclusion that all deregulatory efforts are destined to receive the same fate. History is just as riddled with regulatory failures (see Communism).

If we are to explore this issue further, I suggest we focus on one industry example to avoid getting overwhelmed. Media concentration seems to present an ideal study for our purposes, all things considered... To keep things fun, I suggest this article by the Cato Institute, entitled "The Big Media Boogeyman."

In short, Sen (1998 Nobel Prize winner in Economics) discusses how successful development is more than a matter of economics--democracy, culture, human rights, and education are just a few other factors that play a necessary role in lifting a country from the Third World (Sen is best known for his observation that no democracy has ever experienced a famine). Sen adds philosophy and spirituality to the often cold and sterile discussion of economics and development.

This book seems to cover a range of topics and may well serve to seed a variety of great Boys' weekend discussions. Just thought I would offer this book as a possible addition to the Boys' weekend booklist.

The Washington Post is calling several Democratic presidential candidates to task for siding with Bush on policies they now eschew (see this article). I am less critical than the Washington Post and my fellow bloggers because Congressional representatives must be keenly aware of public tides and they pay dearly for fighting the tide. As I see it, the blame rests more on the public's visceral reaction to contemporary events than on Congress's responsibility to heed its constituents' viewpoints.

I agree with Dean's statement (although made in reference to the Patriot Act and not the war) that members of Congress should not be attacked for what happened during an "atmosphere of enormous emotion." At the same time, I admire those who vote their conscience in spite of potential backlash (e.g., Feingold on the Patriot Act).

I do not mean to suggest that a Congressperson should not account for their votes. Rather, I simply disagree that the Democrats displayed a "dereliction of duty." If we are to hold anyone's feet to the fire for poor decisionmaking, it should be the American people, not its representatives.

Asia Times is running a book review of The Future of Freedom, by Fareed Zakaria. It's a study on the implementation of democracy and how it impacts on freedom and civil liberties. Based on the review it looks fascinating. I think our most bedevilling topic of conversation to date has been how to refine the democratic process. I'm not sure that this book will engage the behavioral aspects that we tend to get into, but it at least hits many peripheral and equally important points, and can help refine the discussion of what exactly it takes to make democracy work. This book will sit high on my unmanageably long "stuff to read" list..

Daniel Schorr has a nice editorial on CSM regarding his experiences with market deregulation. It doesn't go into great depth or have a whole lot of evidence, but it highlights many cases where deregulation failed to live up to its promises. It's a topic we seem to discuss regularly, and perhaps one that would be interesting to study. What are the market conditions that determine whether an industry is best controlled by the public vs the private sector? What methods of deregulation are most likely to result in an improvement in value for consumers?

Thursday, September 11, 2003

Karl Zinsmeister (of the American Enterprise Institute) wrote an article on the opinion page of the Wall Street Journal yesterday that is worth reading. The article has been posted on the AEI website. He describes the first "scientific" opinion poll of the Iraqi people regarding their current situation and views toward the US. Contrary to many media depictions of Iraq, the poll suggests that Iraqis look favorablly on the American presence (at least in the short term), are secular, and are looking to model their government after either the US or Saudi Arabia (of the choices of countries given). My only concern in this poll is that they did not include Baghdad, which just happens to be the largest population center in Iraq. Why would Baghdad be left out of such a poll? In any event, they deserve credit for trying to get real evidence of Iraqi opinions instead of mere speculation by the press and politicians.

In yet another example of the paucity of real evidence for Saddam Hussein posing a threat to the United States, the Wall Street Journal carried a report yesterday about the danger posed by Iraqs unmanned aerial vehicles (UAV's). Both George Bush and Colin Powell (before the UN) made the case that Iraq was capable of using these UAV's to launch biological and chemical attacks against other nations and perhaps even the US. These statements derived from an intelligence report from last October. Attached to this report was a dissent from the Airforce stating they believed it unlikely that Hussein had drones capable of carrying out such attacks. Of course, this dissent was kept secret, even though the Airforce was most capable of making the threat assessment in this area. Now we find that their drones were indeed primitive and incapable of carrying WMD payloads (if indeed Iraq had WMD's).

This is now one of several examples of poor to false evidence regarding an Iraqi threat. I simply can't comprehend why George Bush is not under the same pressure as Tony Blaire. Apparently the American people don't care that they were lied to. Perhaps they will mind paying $87 billion dollars.

There are a couple of interesting bits of news regarding Howard Dean floating around. First, as has been remarked on here, Dean has previously taken a very hawkish, pro-Israel stance on the middle-east. Well apparently he's had a change of heart. He recently got himself into trouble by stating at a campaign rally that he felt the US needed to be even-handed in the conflict, and that an "enormous number" of Iraeli settlements would have to go. Apparently most of the political establishment has gone into shock at the thought that someone could advocate treating the two sides fairly, and so now Dean is already trying to backpedal a bit.

The other news is that he has been meeting with Gen. Wesley Clark, presumably regarding Clark joining him as his vice-president. Were that to happen it would certainly help to cement Dean's lead in the primary race. It's hard to say what impact it would make in the general election without having had much exposure to Clark as a politician.

I have to fully agree with the commentary on the failure of Democrats to vote against the resolution authorizing the use of force in Iraq. This was an abdication of responsibility by many members of Congress... an easy way out of a difficult decision. In fact, I would consider it a dereliction of duty. I use this phrase intentionally. The same phrase is a title of the book Dereliction of Duty by H.R. McMaster. He is a major who extensively researched the leadup to the Vietnam War, with particular focus on the workings of the Johnson administration. The portrait of Johnson in that book is one of the most egregious examples of a politician worried more about "re"-election than he was about consequences of his actions on the American people and the world. He kept Vietnam operations secret from Congress and secret from the American people, all the while leading us further and further into the quagmire. He sacrificed policy for politics, and such individuals need to be banished from our government. Of course, it is incumbent on the American people to carry this out. Unfortunately, they are unlikely to do it.

As one of the impacts of their purchase by google, blogger has decided to offer more features to their free service. You'll notice we have a real title bar now, a spell checker, and the option to save a post as a draft if you need to quit before you're ready to post.

Also, check out their BlogThis! feature, available from the front page. Save that as one of the shortcuts on your browser, then from any page you're browsing you can hit that shortcut to open up a window to post on our blog with a link in it to the page you're viewing. It's pretty slick. Thanks blogger!

This lengthy and well-written Sept 11th story in the New York Times doesn't say anything that hasn't been said before, but its prominence on this day and in that paper took me a bit by surprise. I think it is important to recall, while the human and financial costs of our adventure in Iraq occupy the headlines, that the diplomatic costs were equally severe, and may end up hurting us the most in the long run.

At the WTO meeting in Mexico, Oxfam is leading a coalition of 21 countries against farm subsidies. During the summer the US and EU held their own bilateral talks to decide how to address the issue of subsidies in preparation for this meeting. It doesn't seem like they're in a rush to make major changes, but at least they're coming to understand that this is the critical next step in reaching any further free trade agreements. It creates an awkward political situation for Republicans, who are generally the strongest proponents of free trade, but who also count on support from agricultural states for almost all of their national political power. It will be interesting to see how that unfolds. It's very encouraging to me to see that the developing nations have been able to come together and rally behind this issue. Hopefully it will pave the way for other alliances in dealing with trade issues.

Wednesday, September 10, 2003

So, in the news, Abbas is out and new attacks on Israel are in. I figured it would happen, but not this fast. I think the administration is still trying to pretend the road map isn't dead, but it would take a miracle to rescue it at this point. Now we've got another Arafat crony running the show there. I really don't see Arafat's crowd settling this thing. His crew is infamously corrupt, and I fear, growing further out of touch with Palestinian popular sentiment every day. Not to mention the fact that the US and Israel hate him with a passion and don't want to deal with him. In fact, I rather suspect he'd have lost power by now except for how strongly the US and Israel fight against him and the sympathy that this engenders in the Palestinian populace. And the way things stand now he has a death grip on the armed wing of the Palestinian Authority. As long as the US and Israel insist on dealing with the PA alone (not involving Hamas) and they maintain a level of pressure that leaves the PA unable to thouroughly reform itself this conflict will go nowhere.

Also in the news, Bush asks for a boatload of money for Iraq. I think this is a very good idea, but agree with various Democratic congress-people (including our friend Russ) that he needs to be made to suffer for it. If he is not willing to admit to any mistakes, if he is not willing to compromise on his tax cuts to fund it, if he is not willing to let Congress have more say on how it is spent, they need to reject this request. There is a column on tompaine.com of moderate value that contains a quote that I think captures the brilliance of Rove's media strategy: "The genius of the new Bush Speak is to fudge all substantive distinctions, on the assumption that the American people won't notice what you are saying as long as you get the photo op right." It's the ultimate statement of style over substance, and it has worked beautifully so far. Congress has an opportunity to force the administration to deal in substance or to see their plans suffer. If indeed they choose to pass up the funding to avoid substantive discussion of the issues, it would truly be a tragedy for Iraq. However, I don't think they can afford to do that, and I don't think they will. Congress, press them hard while you have the chance.

But all of that is not what I want to write about tonight. I wanted to clearly delineate why I will not vote for any Democratic candidate who voted for the resolution allowing George Bush to go to war with Iraq. It's late already, so I'm going to keep this short and to the point. When this vote came up in October of 2002 it had been known for a year that the Bush administration was angling to go to war with Iraq. Rumsfeld had set up a planning committee to prepare for this war within weeks of the 9/11 and had been working to position the US for this war despite a complete lack of evidence tying Saddam to the attack or demonstrating any substantive risk posed by Iraq to the US. When this vote came up the doctrine of preemtive warfare had been circulated to the public and the administration's support for it was known. When this vote came up it was known that our allies were reluctant at best and that the administration planned to use this resolution in an effort to blackmail the UN into agreeing to the war. When this vote came up it was known that only the most sketchy of evidence existed to justify a war on Iraq. When this vote came up it was known that the administration was refusing to disclose any plans for dealing with the aftermath of the conflict and offered only the most vague details on the costs of it.

So why did the Democratic party decide to support the resolution? Because they thought getting it off table would help them in the mid-term elections. Here we are discussion the most important of political issues, whether or not to go to war, and the Democratic party was busy playing politics. Many of those who voted for the resolution expressed strong doubts and concerns about where the adminstration was headed and how they would make use of the resolution. But they voted for it anyway. This is a level of disconnect that I simply cannot fathom. Why do you bother to try to attain a position of power if not to have some say on an issue of this critical importance? I cannot but conclude that the Democratic party and those members of it who supported the resolution are so lost in their pursuit of power that they have forgotten the noble pursuits that led them into politics in the first place. This was an act of the most extreme cynicism and disdain for their appointed duties.

I understand the importance of politics and compromise and playing the game to achieve your goals. But this goes far beyond that. This was a matter of the most vital moral and political importance. That is not a time for playing games. It was unconscienable for the Democrats to view going to war as a matter of political expediency.

And to top it off, it didn't even work. The Democrats lost out on the mid-term elections because people were rallying behind Bush's war. Even having voted for the war they could not rightfully claim they were stronger proponents of it than the Republicans, many of whom voted for the war, not as a matter of politics, but because they actually believed in it. It was a stupid idea, and I believe I said so from the beginning. Signing on to the President's anti-terror agenda cannot help the Democrats. It simply gives these policies their endorsement and strengthens the position on this critical issue of the Republicans, from whom these policies originated in the first place.

And so I cannot in good conscience ever again support any Democratic politician who supported or voted for that resolution, and will not, even should the cost be a Republican victory. This goes beyond a matter of disagreeing on policy, as I disagree with the Republicans. It is a betrayal of everything our political system should be about. I will not stand for it.